BILL ANALYSIS Ó SB 1005 Page 1 Date of Hearing: June 8, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 1005 (Jackson) - As Amended June 6, 2016 SENATE VOTE: 35-2 SUBJECT: Marriage KEY ISSUE: should california statutes be updated to replace REFERENCES to "husband" and "wife" with the gender-neutral term "spouse"? SYNOPSIS This technical, non-substantive bill replaces references to "husband" or "wife" with references to "spouse" throughout the codes. This bill is a follow-up to 2014's SB 1306 (Leno), Chap. 82, Stats. 2014, which clarified that the statutory language in the Family Code enacted by Proposition 22 of 2000 (which provides that "only marriage between a man and a woman is valid or recognized in California") no longer has, after the California Supreme Court's decision in In re Marriage Cases (2008) 43 Cal.4th 757, any legal effect, and therefore defined marriage in a gender-neutral manner. That bill represented the culmination of a decades-long effort to allow same-sex couples to marry in California. SB 1005 Page 2 In 1999, California created its first domestic partnership statute for same-sex couples (AB 26 (Migden), Chap. 588, Stats. 1999), following similar actions by local jurisdictions beginning in the 1980's. The drive for marriage equality was advanced substantially in 2005 when legislation to permit same-sex couples to marry was introduced. AB 849 (Leno) became the first marriage equality bill in the nation to pass a state legislature, but it was vetoed by then-Governor Schwarzenegger. Three years later, in 2008, the California Supreme Court, in its landmark In re Marriage Cases ruling, struck down as unconstitutional statutes that limited marriage to a man and a woman, and same sex-couple were able to marry. That lasted until November of 2008, when Proposition 8, which defined marriage in the state constitution as the union of a man and a woman, was approved by the voters. Proposition 8 was subsequently found unconstitutional by a federal district court and that decision remained the law in California after the U.S. Supreme Court found that appellants lacked standing to appeal. (Perry v. Schwarzenegger (2010) 740 F. Supp. 2d 921 (N.D. Cal.); Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) Just last year, the U.S. Supreme Court, in the landmark Obergefell v. Hodges case, determined that preventing same-sex couples from exercising their fundamental right to marry violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. (Obergefell v. Hodges (2015) 135 S. Ct. 2584.) Thus, same-sex couples may now marry anywhere in the United States. This bill is sponsored by Equality California and supported by, among others, the American Civil Liberties Union of California and National Center for Lesbian Rights, who state that it is important for statutes to accurately reflect the law to avoid confusion for the courts and unrepresented litigants. It is opposed by the California Catholic Conference, who argues by replacing "the meaningful terms 'husband' and 'wife' with the generic word 'spouse,' [the bill] depletes the critical role gender plays in the family structure" and could infringe on SB 1005 Page 3 individuals' "religious liberty rights." SUMMARY: Replaces "husband" and "wife" with "spouse." Specifically, this bill: 1)Replaces "husband" and "wife" with "spouse." 2)Clarifies that "spouse" includes registered domestic partners throughout the codes. EXISTING LAW: 1)Provides that marriage is a personal relation arising out of a civil contract between two persons. (Family Code Section 300. Unless stated otherwise, all further statutory provisions are to that code.) 2)Provides that registered domestic partners have the same rights, protections, and benefits and are subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. Also applies to former domestic partners and surviving domestic partners. (Section 297.5.) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: This bill continues a decades-long effort to allow same-sex couples to marry in California. While California and the entire United States now recognize the rights of same-sex couples to marry, the codes have not fully caught up to the law, SB 1005 Page 4 and this bill seeks to move that process forward by replacing the terms "husband" and "wife" with the gender neutral term "spouse" throughout the codes. In support of the bill, the author writes: There are many provisions in statutory law, particularly in California's Probate Code, with important applications for married couples and the individual rights of a spouse. Language that does not accurately reflect marriage equality can create confusion for courts, litigants, and applicants for state programs about what rights are available to same-sex spouses, particularly for self-represented individuals. The History of Marriage Equality in California: The origins of this bill - and the civil rights struggle it represents - go back decades. Beginning in the mid-1980's, local jurisdictions began to recognize same-sex couples by establishing a legal status called "domestic partnership," which gave same-sex couples not only limited protections for themselves and their children, but also, for the first time, government recognition as family units. By 2000, 18 California local governments had established domestic partnership registries. California took notice of this emerging movement to recognize the rights of same-sex couples. In 1999, the Legislature enacted AB 26 (Migden), Chap. 588, Stats. 1999, to create the state's first domestic partnership statute. The most comprehensive set of rights and responsibilities for registered domestic partners was enacted in 2003 by AB 205 (Goldberg), Chap. 421, which became fully operative on January 1, 2005 and still applies today. In 2000, California voters passed Proposition 22 to prohibit California from recognizing same-sex marriages. The measure passed with 61 percent of the vote and became codified as Section 308.5 of the Family Code. SB 1005 Page 5 In February 2004, the City and County of San Francisco began issuing marriage licenses to same-sex couples. However, after 4,037 same-sex couples had married, the California Supreme Court ordered San Francisco to stop issuing marriage licenses to same-sex couples and invalidated the marriages that had already occurred. (Lockyer v. City and County of San Francicso (2004) 33 Cal.4th 1055.) Senator Leno's first legislative attempt to permit same-sex couples to marry was AB 19 in 2005, which passed this Committee that year but failed passage on the Assembly Floor. Senator Leno then revived the bill later in that year as AB 849, which became the first such bill in the nation to be passed by both houses of a legislature. However, then-Governor Schwarzenegger vetoed the bill. Senator Leno nevertheless reintroduced the measure in 2007 as AB 43, but then-Governor Schwarzenegger once again vetoed the bill, stating it was up to the Supreme Court to decide if the state's ban on same-sex marriage was constitutional, which happened the very next year. On May 15, 2008, the California Supreme Court, in a 4-3 decision, struck down as unconstitutional the California statutes limiting marriage to a man and a woman. The majority opinion concluded that "the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." (In re Marriage Cases (2008) 43 Cal.4th 757, 782 (footnote omitted).) The Court found that "[a]lthough our state Constitution does not contain any explicit reference to a 'right to marry,' past California cases establish beyond question that the right to marry is a fundamental right whose protection is guaranteed to all persons by the California Constitution." (Id. at 809.) The core substantive rights embodied in the right to marry "include, most fundamentally, the opportunity of an individual to establish - with the person with whom the individual has chosen to share his SB 1005 Page 6 or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage." (Id. at 781.) Accordingly, the Court concluded that "in light of the fundamental nature of the substantive rights embodied in the right to marry - and their central importance to an individual's opportunity to live a happy, meaningful, and satisfying life as a full member of society - the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation." (Id. at 820, emphasis added.) Approximately 18,000 same-sex couples married in California after the effective date of the In re Marriage Cases decision. On November 4, 2008, Proposition 8, which added to the California Constitution a provision stating that in California marriage could only be between one man and one woman, narrowly passed on a vote of 52-48 percent and same-sex marriages were once again prohibited in California. Immediately after the passage of Proposition 8, its opponents filed a petition directly with the California Supreme Court seeking to invalidate the measure on the grounds that it was not permissibly enacted. The Supreme Court, in Strauss v. Horton (2009) 46 Cal.4th 364, upheld Proposition 8 in a 6-1 decision, but held, unanimously, that the same-sex marriages performed in California before the passage of Proposition 8 were valid. While upholding Proposition 8, the Court reiterated its key holding in In re Marriage Cases, namely that in all respects, other than the word marriage, "same-sex couples retain the same substantive protections embodied in the state constitutional rights of privacy and due process as those accorded to opposite-sex couples and the same broad protections under the state equal protection clause that are set forth in the majority opinion in the In re Marriage Cases, including the general principle that sexual orientation constitutes a suspect classification and that statutes according differential treatment on the basis of sexual orientation are constitutionally permissible only if they SB 1005 Page 7 satisfy the strict scrutiny standard of review." (Id. at 412.) In 2009, opponents of Proposition 8 filed an action in federal court in the Northern District of California challenging Proposition 8 as violating both the due process clause and equal protection clause of the 14th Amendment to the federal constitution and seeking injunctive relief enjoining application of the proposition. After a lengthy trial, the district court concluded that Proposition 8 was unconstitutional, violating both the federal due process and the equal protection clauses. (Perry v. Schwarzenegger (2010) 704 F. Supp. 2d 921, 1003 (N.D. Cal.).) The Ninth Circuit agreed on narrower grounds, ruling that Proposition 8 violated the equal protection clause by targeting a minority group and withdrawing a right that the group already possessed (the right to marriage under the In re Marriage Cases) without a legitimate reason for doing so. (Perry v. Brown (9th Cir. 2012) 671 F.3d 1052.) The United States Supreme Court, on a 5-4 decision, dismissed the appeal for lack of standing. The Supreme Court found that the proponents of the initiative lacked standing to appeal. (Hollingsworth v. Perry (2013) 133 S. Ct. 2652.) As a result, the district court decision became the law of California. As a result, on June 28, 2013, California began allowing same-sex couples to marry and began recognizing marriages between same sex couples from other states. Two years ago, the Legislature, conformed existing statutes to superseding state and federal case law, specifically provided that marriage is the gender-neutral union of two individuals in SB 1306 (Leno), Chap. 82, Stats. 2014. Finally, the U.S. Supreme Court, in the landmark Obergefell v. Hodges case, determined that preventing same-sex couples from exercising their fundamental right to marry violated the due process and equal protection clauses of the 14th Amendment. SB 1005 Page 8 (Obergefell v. Hodges (2015) 135 S. Ct. 2584.) Thus, same-sex couples today may marry across the United States. This Bill Seeks to Update the Codes to Reflect Current Law: For unrepresented individuals, understanding the law and complex legal processes is often very difficult and can be nearly impossible when statutes do not reflect the actual law. Updating the statutes will help ensure that someone reading the California codes will have an accurate understanding of the law. California's courts have long interpreted the code to apply neutrally regarding gender in an effort to accommodate the evolution of the nuclear family. In order to best protect parties and their children, courts recognize that in many families traditional gender-stereotypes cease to exist: more mothers are breadwinners, more fathers are primary caretakers, and many same-sex couples are raising children. To that end, in 2013 the Legislature updated statutory terms within the Uniform Parentage Act to conform with case law and other statutory provisions, including changing "presumed father" to "presumed parent," and replacing "father" and "mother" with "parent." (See AB 1403 (Committee on Judiciary), Chap. 510, Stats. 2013.) In addition, the Legislature enacted SB 1306 (Leno), Chap. 82, Stats. 2014, which deleted references to "husband" or "wife" in the Family Code and instead referred to a "spouse." Similarly, this bill would update the remaining codes to accurately reflect California law. The American Civil Liberties Union of California, in support, further notes: "Language [in the codes] that does not accurately reflect the law can create confusion for courts, litigants, and applicants for state programs about what rights are available to same-sex spouses, particularly self-represented individuals." SB 1005 Page 9 Domestic Partners are Included Under "Spouses." While this bill only replaces "husband" and "wife" with the word "spouse," spouse also includes domestic partners. California's domestic partnership laws provide that registered domestic partners have the "same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." (Section 297.5.) Similarly, former registered domestic partners and surviving registered domestic partners have the same rights as former spouses and surviving spouses. (Id.) Thus, whenever the term "spouse" is used in the codes it also includes registered domestic partners. To make that more clear to non-lawyers, this bill adds clarifying definitional language to each code that includes the term "spouse" to refer to Section 297.5 and make clear that "spouse" includes a registered domestic partner. ARGUMENTS IN SUPPORT: In support of this bill, Attorney General Kamala Harris writes that "much of statute continues to reflect California's unfortunate history of discrimination. Gendered references to "husband" and "wife" throughout state law do not adequately reflect the reality of modern marriage rights, and these references perpetuate a painful legacy as California continues to advance in its protection of LGBT liberties. By replacing outdated language in the codes with gender neutral nomenclature, Senate Bill 1005 both corrects legal inaccuracies and aids significantly to the continued restoration of dignity for same-sex couples in the state." ARGUMENTS IN OPPOSITION: In opposition to the bill, the California Catholic Conference writes: SB 1005 Page 10 [A]s it is was historically written into our state constitution, the words "husband" and "wife" are not only adequate, but necessarily stated, in order to convey and include the requirement for both genders to be present in law. Similarly, our Church not only recognizes, but upholds, what has been reality for thousands of years: that marriage unites a man and woman in a unique relationship that provides an ideal environment for childrearing. That definition recognizes a child's innate right to know and be nurtured by her/his parents and the fundamental importance of that relationship to the continued stability and flourishing of society. Replacing the meaningful terms "husband" and "wife" with the generic word "spouse," depletes the critical role gender plays in the family structure. The Catholic Church, along with other faith traditions, teaches that the nature of marriage and the family cannot be redefined by society, as God is the author of marriage and its corresponding gift of creating human life. The legal recognition of marriage is not only about personal commitment but also about the social commitment that husband and wife make to the well-being of their children. It is for this reason that it is important for government to give unique status to marriage between one man and one woman both in law and in public policy. Moreover, by making such unneeded, amendments to the laws of California, unintended consequences are undoubtedly likely to arise. Not the least of these unintended consequences could be the infringement of conscience and religious liberty rights. People of good faith differ on this issue often for reasons of religious conviction. Coercion imposed by legislative action of this nature does not resolve the disagreement. It can make our culture more confrontational, more contentious, and less civil. SB 1005 Page 11 REGISTERED SUPPORT / OPPOSITION: Support Equality California (sponsor) American Civil Liberties Union of California American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO Attorney General Kamala Harris California Teachers Association National Association of Social Workers, California Chapter National Center for Lesbian Rights Secular Coalition of California Opposition California Catholic Conference Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334 SB 1005 Page 12